Dill v. Pa. Bd. of Prob. & Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edwin Dill, :

Petitioner :

:

v. : No. 1054 C.D. 2017

: Submitted: February 23, 2018

Pennsylvania Board :

of Probation & Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: May 15, 2018

Edwin Dill, an inmate at SCI-Benner Township, petitions for review of

an adjudication of the Pennsylvania Board of Probation and Parole (Board) that

denied his challenge to the Board’s recalculation of his maximum sentence date.

Dill contends that because the Board did not conduct a revocation hearing within

120 days of receiving official verification of his conviction on new criminal charges,

its sentence recalculation was a nullity. His counsel, David Crowley, Esq., has

petitioned for leave to withdraw from representation of Dill. For the following

reasons, we grant Counsel’s petition and affirm the Board’s order.

On December 11, 1984, Dill was sentenced to 12 years, 6 months to 25

years upon his conviction for robbery and related charges. When Dill was paroled

on October 24, 1993, his maximum sentence date was April 24, 2006.

On December 5, 1996, Dill was charged criminally for possession of a

controlled substance and incarcerated in Delaware County prison. That same day

the Board issued a detainer against Dill both for new charges and for several

technical parole violations. Dill requested a continuance of the parole revocation

hearing “[t]o await disposition of all outstanding criminal charges.” Certified Record

at 30 (C.R. __). While in Delaware County prison, Dill was charged with the federal

crime of interference with interstate commerce by robbery and related firearms

charges. After the state charges against Dill were dismissed,1 a federal bench

warrant for his arrest was issued. On June 25, 1997, Dill was taken into federal

custody. On July 2, 1997, Dill was “detained without bail pending trial” by the

federal court. C.R. 40.

On November 10, 1997, Dill was convicted of the federal robbery

charges and sentenced to incarceration for 262 months. On November 12, 1997, the

Board received official verification of the conviction. On June 28, 1998, the Board

lodged a detainer against Dill on the federal criminal conviction.

On March 2, 2016, Dill was released from federal prison to the Board’s

detainer. On March 23, 2016, the Board conducted a revocation hearing on Dill’s

outstanding technical parole violations and the criminal parole violation. At that

hearing, the technical parole violations were dropped because Dill’s former parole

agent could not be located to testify. Evidence of Dill’s federal conviction was

entered into evidence.

Dill moved for a dismissal of the revocation proceeding for the stated

reason that the applicable statute required a parole violator to serve backtime on a

state sentence before serving time on a new federal sentence. Dill contended that

the Board should have removed him from federal custody to complete his backtime

in state prison. Dill then testified about his accomplishments in federal prison. After

1

Dill’s motion to dismiss the parole violation charges recited that the state charges were dismissed

on June 15, 1997. The record does not otherwise document the date the state charges were

dismissed.

2

completing several courses in health and wellness, Dill became an instructor in the

federal prison on physical fitness and physical therapy. He is now 61 years old and

would like to live outside prison for the remainder of his life.

The Board recommitted Dill to serve 12 months backtime for his

criminal parole violation and recalculated his maximum sentence date to May 15,

2027. Dill filed an administrative appeal, asserting that the revocation hearing was

untimely. The Board denied the appeal, explaining that at the time of Dill’s

conviction on the federal charges, the applicable statute required him to serve the

federal sentence before serving backtime on his state sentence. Accordingly, Dill

did not become available to the Board until his release from federal custody in 2016,

at which point the Board promptly conducted a parole revocation hearing.

Dill has petitioned for this Court’s review, arguing that his revocation

hearing was untimely and, thus, the Board had no authority to recalculate his

maximum sentence date.2 Counsel has filed an application to withdraw from Dill’s

representation and a brief pursuant to Anders v. State of California, 386 U.S. 738

(1967), that explains why Dill’s appeal lacks merit.

When evaluating a petition for leave to withdraw from representation

of a parolee, we must determine whether counsel has satisfied the following

requirements: (1) notifying the inmate of the application to withdraw; (2) providing

the inmate with a copy of the Anders brief or a no-merit letter in accordance with

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and (3) advising the inmate of

2

Our review of the Board’s revocation decision determines whether constitutional rights were

violated, whether the decision is in accordance with the law, or whether necessary findings are

supported by substantial evidence. Palmer v. Pennsylvania Board of Probation and Parole, 134

A.3d 160, 164 n.2 (Pa. Cmwlth. 2016). Here, the issue is whether Dill’s revocation hearing was

timely, a matter on which the Board bears the burden of proof. Taylor v. Pennsylvania Board of

Probation and Parole, 931 A.2d 114, 116 (Pa. Cmwlth. 2007).

3

his right to retain new counsel or file a brief on his own behalf. Miskovitch v.

Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013).

If counsel has fully complied with the technical requirements for withdraw, the

Court will independently review the merits of the inmate’s claims.

Here, the record reflects that Counsel has notified Dill of the application

to withdraw; has provided Dill with a copy of the Anders brief that details Counsel’s

review of the issues and the reasons why Counsel concluded those issues lack merit;

and has advised Dill of his right to retain new counsel or raise any new points he

might deem worthy of consideration. Because Counsel has satisfied the procedural

requirements for withdrawal, the Court will review the inmate’s claims.

Accordingly, we turn to the merits of Dill’s appeal.

Due process requires that a parolee receive a timely hearing after he is

taken into custody for a parole violation. See Taylor, 931 A.2d at 117 (citing

Morrissey v. Brewer, 408 U.S. 471 (1972)). In accordance with that principle, the

Board has obligated itself by regulation to hold a parole revocation hearing within

120 days of receiving official verification of the parolee’s conviction. 37 Pa. Code

§71.4(1).3 Because the Board learned of Dill’s federal conviction almost 20 years

before it held a revocation hearing, he argues that his revocation hearing was patently

untimely. His argument centers on the Prisons and Parole Code (Parole Code),4

which states, in relevant part, as follows:

If the parolee is sentenced to serve a new term of total

confinement by a Federal court or by a court of another

jurisdiction because of a verdict or plea under paragraph (1), the

3

The text of the regulation is set forth infra at 7.

4

61 Pa. C.S. §§101-6309.

4

parolee shall serve the balance of the original term before

serving the new term.

61 Pa. C.S. §6138(a)(5.1) (emphasis added) (added by the Act of October 27, 2010,

P.L. 931).

The Board responds in two ways. First, at the time Dill was sentenced,

the law required him to serve his new federal sentence before serving backtime on

the prior state sentence. Second, under its regulation, the Board is not required to

hold a parole revocation hearing so long as the parole violator remains in federal

custody. Rather, the regulation requires the Board to hold a hearing within 120 days

of the parole violator’s return to state custody. Because Dill was returned on March

2, 2016, and the hearing was held on March 23, 2016, the Board satisfied its

regulation.

At the time Dill was sentenced on his federal crimes, the Parole Act 5

was the law of Pennsylvania. Section 21.1(a) of the former Parole Act stated as

follows:

If a new sentence is imposed upon such parolee, the service of

the balance of said term originally imposed shall precede the

commencement of the new term imposed in the following cases:

(i) If a person is paroled from any State penal or

correctional institution under the control and

supervision of the Department of Justice and the

new sentence imposed upon him is to be served in

any such State penal or correctional institution.

(ii) If a person is paroled from a county penal or

correctional institution and the new sentence

5

The Parole Act, Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. §§331.1-331.34a,

was repealed by the Act of August 11, 2009, P.L. 147, as part of its codification at 61 Pa. C.S.

§§101-6309.

5

imposed upon him is to be served in the same

county penal or correctional institution.

In all other cases, the service of the new term for the latter crime

shall precede commencement of the balance of the term

originally imposed.

61 P.S. §331.21a(a) (emphasis added) (added by Section 5 of the Act of August 24,

1951, P.L. 1401, as amended). This Court has construed “[i]n all other cases” as

applying to federal sentences. See Griffin v. Department of Corrections, 862 A.2d

152, 155 (Pa. Cmwlth. 2004). In short, when Dill began serving his federal sentence,

the Parole Act required him to complete that sentence before he could serve backtime

on his state sentence.

As noted, due process requires the Board to conduct a parole revocation

hearing within a reasonable time of learning of the parolee’s conviction. The Board

has promulgated a regulation that requires the hearing to be held within 120 days of

the Board’s receipt of official notification of a conviction. The Board’s regulation

states as follows:

(1) A revocation hearing shall be held within 120 days from the

date the Board received official verification of the plea of guilty

or nolo contendere or of the guilty verdict at the highest trial

court level except as follows:

(i) If a parolee is confined outside the jurisdiction of

the Department of Corrections, such as confinement

out-of-State, confinement in a Federal correctional

institution or confinement in a county correctional

institution where the parolee has not waived the

right to a revocation hearing by a panel in

accordance with Commonwealth ex rel. Rambeau v.

Rundle, 455 Pa. 8, 314 A.2d 842 (1973), the

revocation hearing shall be held within 120 days of

the official verification of the return of the parolee

to a State correctional facility.

6

37 Pa. Code § 71.4(1)(i) (emphasis added). The Board’s regulation is clear. So long

as a parolee is in federal custody, the Board’s duty to hold a revocation hearing is

deferred until the parolee is returned to state custody, regardless of when the Board

received official verification of his new conviction. The validity of this regulation

has been confirmed by this Court several times.

In Thomas v. Pennsylvania Board of Probation and Parole (Pa.

Cmwlth., No. 279 C.D. 2015, filed March 7, 2016),6 the parolee also invoked 61 Pa.

C.S. §6138(a)(5.1) to challenge his sentence credit. There, the parolee was

convicted on federal bank robbery charges and sentenced to 63 months in federal

prison. In 2014, at the expiration of his federal sentence, he was released to the

Board’s custody. The parolee argued that because Section 6138(a)(5.1) of the Parole

Code required his original sentence to be served first, his time in federal prison had

to be credited to his backtime. We rejected this argument because the parolee had

been sentenced on the federal charges four months before the passage of Section

6138(a)(5.1).

In Steward v. Pennsylvania Board of Probation and Parole (Pa.

Cmwlth., No. 684 C.D. 2017, filed March 16, 2018), this Court considered, as here,

whether the parolee’s revocation hearing was timely. There, the parolee was arrested

in Maryland on criminal charges for which he was convicted and sentenced. On

November 22, 2016, he was released from Maryland to the Board’s detainer, and a

revocation hearing was held on February 7, 2017. The parolee argued that his

revocation hearing was untimely because the Board had received official verification

of his Maryland conviction on January 5, 2016.

6

Pursuant to Commonwealth Court Internal Operating Procedure §414(a), 210 Pa. Code

§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as

binding precedent.

7

We held that “where a parolee is in the custody of another state or

otherwise unavailable, the Board’s duty to hold a revocation hearing is deferred until

the parolee is returned to Pennsylvania, regardless of when the Board received

official verification of his new conviction.” Steward, slip op. at 7 (citing 37 Pa. Code

§71.5(a), (c)(1)). We explained that the Parole Code does not authorize the Board

to take custody of a parolee who is already in the custody of the State of Maryland.

This was consistent with our holding in Brown v. Pennsylvania Board of Probation

and Parole (Pa. Cmwlth., No. 262 C.D. 2017, filed December 14, 2017), where we

explained:

[The parolee] does not dispute that he was in federal custody both

before and after his federal sentencing and when the Board

received official verification of his conviction. His argument

presumes that the Board had the ability to obtain him from

federal custody in order to hold a revocation hearing and

recommit him as a [parole violator] to serve the remainder of his

original sentence in accordance with Section 6138(a)(5.1).

However, the Board asserts that it does not have the ability to

acquire a Pennsylvania parolee from the custody of another

jurisdiction in order to recommit the parolee to serve the

remainder of the original sentence…. Thus, ... [the parolee] was

already unavailable to the Board when he pled guilty and was

sentenced, as well as when it received official verification of his

conviction.

Brown, slip op. at 11-12 (emphasis in original).

Lest there be any doubt, in Santosusso v. Pennsylvania Board of

Probation and Parole (Pa. Cmwlth., No. 574 C.D. 2017, filed January 30, 2018),

slip op. at 6, this Court explained that the Board does not have “the power to pluck

a Pennsylvania parolee from a federal prison for the purpose of recommitting him as

a parole violator.” We rejected the parolee’s claim that Section 6138(a)(5.1) of the

8

Parole Code made him available to the Board prior to his release from the federal

prison system.

Here, Dill served his federal sentence in accordance with existing law

that required new federal sentences to be served prior to serving backtime. Indeed,

Dill had been in federal custody approximately 13 years before the Parole Code was

amended in 2010 to change the order of serving sentences. 61 Pa. C.S.

§6138(a)(5.1). The 2010 amendment is inapplicable to Dill, who was sentenced in

1998. Thomas, slip op. at 3. In any case, the Board’s regulation is clear that its 120-

day rule for holding a parole revocation hearing is not triggered until the parolee is

returned to Pennsylvania and, thus, “available” to the Board. Simply, there is no

legal authority for the notion that the Board could or should “pluck” Dill from federal

prison to hold a revocation hearing. Santosusso, slip op. at 6.

Dill became available to the Board upon his release from federal prison

on March 2, 2016. His revocation hearing on March 23, 2016, was held “within 120

days of the official verification of the return of the parolee to a State correctional

facility.” 37 Pa. Code §71.4(1)(i). It was timely held.

For these reasons, we affirm the Board’s adjudication.

_____________________________________

MARY HANNAH LEAVITT, President Judge

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edwin Dill, :

Petitioner :

:

v. : No. 1054 C.D. 2017

:

Pennsylvania Board :

of Probation & Parole, :

Respondent :

ORDER

AND NOW, this 25th day of May, 2018, the order of the Pennsylvania

Board of Probation and Parole, dated July 19, 2017, is AFFIRMED and the

application for leave to withdraw as counsel filed by David Crowley, Esquire, is

GRANTED.

______________________________________

MARY HANNAH LEAVITT, President Judge